HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Down Lisburn Health and Social Services Trust and another (AP) (Respondents) v. H (AP) and another (AP) (Appellants) (Northern Ireland)

[2006] UKHL 36

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Carswell. For the reasons he gives, with which I agree, I would dismiss this appeal.

LORD RODGER OF EARLSFERRY

My Lords,

2. I have had the advantage of considering in draft the speech which is to be delivered by my noble and learned friend, Lord Carswell. I agree with it and, for the reasons which he gives, I too would dismiss the appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

3. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Carswell. I agree with it, and for the reasons which he gives I would dismiss this appeal. I add a few words of my own out of respect for the dissenting opinion of my noble and learned friend Baroness Hale of Richmond.

4. Baroness Hale's opinion contains, if I may respectfully say so, some valuable insights as to the advantages and disadvantages of the procedure of freeing a child for adoption. These considerations, and Baroness Hale's comments on the practicalities of the procedure, may well be taken into account in the review of adoption law in Northern Ireland which is to take place soon. But I am not persuaded that the trial judge, approaching the matter in the context of society in Northern Ireland, made such an error as would entitle an appellate court, applying the principles in G v G [1985] 1 WLR 647, to reverse his decision.

5. In any case concerning children an appellate court must (as Lord Fraser of Tullybelton recognised in G v G at p 652A) bear in mind the potentially unsettling effect of prolonged litigation. I fear that reversal of the judge's decision in this case would be bound to be seen as a victory by the birth parents. It would be surprising if, after what they regarded as a victory, they were able to put aside the strong feelings which have actuated them up to now. I do not of course base my conclusion on that point, but it confirms my view that the appeal should be dismissed.

BARONESS HALE OF RICHMOND

My Lords,

6. The issue before us is the use of the procedure to free a child for adoption and to dispense with parental consent in a case where some continued contact may well be in the child's best interests. Freeing for adoption was introduced in England and Wales under the Adoption Act 1976, following the Report of the Departmental Committee on the Adoption of Children chaired by Sir William Houghton in 1972 (Cmnd 5107). At that time, the conventional picture of adoption was still prevalent: it was the consensual if reluctant placement of a baby, usually born to an unmarried mother, with strangers who would step into the shoes of the birth family, making a clean break with the past. Yet even then times were changing. Fewer and fewer babies were being surrendered for adoption. The use of adoption for older children who might otherwise spend their childhoods in the care of local authorities was increasing. Concern that children should not be left without a permanent home led social workers to strive to achieve 'permanency' - either by reuniting them with their own families or by finding them a new 'family for life'. These adoptions could bring great benefits for the child but they also brought a new set of challenges for social work and for the law. The children were older. They had a history. This might well include damaging experiences from their past. But it might also include significant relationships with members of their birth family. The use of compulsory adoption, dispensing with the need for parental agreement, was increasing. But the fact that these children had a history also meant that their best interests might require that any significant links with the birth family be preserved in a more 'open' form of adoption. It was increasingly recognised that there could be more ways than one of achieving the desired permanency for the child. (The recent introduction of special guardianship in England and Wales is a further step in the same direction.) Research (see, for example, J Triseliotis, In Search of Origins, Routledge and Kegan Paul, 1973) had also shown how adopted people often felt the need to discover more about their origins when they grew up.

7. Interest began to develop in preserving some limited contact between an adopted child and her birth family. This might serve two rather different functions. One, which can often be accomplished by life story books and occasional letters and cards, is to help the adopted child develop her sense of identity and self as she grows up. Another, which may indicate the occasional face to face meeting, is to preserve significant attachments, prevent the feelings of loss and rejection which the child who remembers her birth family may feel if she is completely cut off from her past and help her not to worry about the family she has left behind, including siblings (see Department of Health, Adoption Now. Messages from Research, 1999). This form of contact requires the birth parents to be able to put their own feelings of grief and anger aside so that they do not use their contact to undermine the adoptive placement. But if they can do this it can be a great help to the child in making the transition to her new 'family for life'.

8. Hence the case for some form of post adoption contact may be strongest when the adoption itself is particularly contentious. The parents may rightly feel that they have something to offer the child even if she can no longer live with them. The problem for the court is to enable all the competing issues to be properly tried and resolved. This is not easily done within the framework of freeing for adoption because the parents' attitude to adoption may be judged without prospective adopters having been identified. Since the implementation of the Adoption and Children Act 2002 in December last year, freeing for adoption is no longer available in England and Wales. But it remains a possibility in Northern Ireland. This case provides a good illustration both of its advantages and of its disadvantages.

9. There were of course many matters in dispute between the Trust and the parents, who remain deeply opposed to adoption and would like their child to be returned to them eventually. But the issue of principle for us is put this way in the respondent's case:

"In circumstances where there is a significant attachment between a child and her birth parents, where post adoption contact is in the best interests of the child, but it cannot be established that there will be post adoption contact, is the court required to take those issues into account when deciding, for the purposes of making an order under article 18 of the Adoption (Northern Ireland) Order 1987:

(a) whether adoption is in the best interests of the child; and

(b) whether the parents are unreasonably withholding their consent to their child being adopted?"

The factual history

10. We are concerned with a little girl whom I shall call Nina. She was born on 19 April 2002, the fourth child of her mother, whom I shall call Maureen. The mother has three older children, Helen aged 16, Peter aged 14, and Tanya aged 10. Nina is, however, her first child with the father, whom I shall call Bernard. He is registered as Nina's father and thus shares parental responsibility for her under the terms of the Children (Northern Ireland) Order 1995, article 7(1)(a) (in this respect Northern Irish law was ahead of English law, for the equivalent provision in England and Wales only applies to fathers registered on or after 1 December 2003).

11. The mother has a long history of problems with alcohol, although she has also had periods of stability and sobriety. When not abusing alcohol she is able to look after her children properly and to establish good relationships with them. Unfortunately, because of her problems, they have all suffered periods of separation from her, including periods in care. The older three were all the subject of care orders when Nina was born. According to Professor Triseliotis, the renowned emeritus Professor of Social Work in the University of Edinburgh, "the two eldest [children] present complex problems and their future well-being is very much in doubt. [Tanya] has been somewhat spared by the simple explanation that she is younger and has not had so many moves, but her long term welfare is also far from certain."

12. Because of the mother's history and abuse of alcohol during the pregnancy, Nina was placed in foster care when she left hospital soon after the birth. However, she was reunited with her parents when they were all admitted to a residential assessment centre in June 2002. The assessment went so well that all three returned home to live together in August 2002 and the Trust did not pursue its application for a care order. Later, the three older children also returned home. Unfortunately, the mother relapsed into alcohol abuse in early 2003 and the father was unable to take responsibility for the children while she was unfit to do so. A crisis arose in June 2003, and the children were once again removed from home. During the latter part of 2003, the Trust determined that the care plan for Nina should be adoption. Not surprisingly, they did not wish to see the pattern established for the older children repeating itself with Nina.

13. The hearing of the application for a care order began in March 2004 and the order was granted in July. His Honour Judge Rodgers held that Nina was likely to suffer significant harm because of her mother's abuse of alcohol and the father's violence towards the mother. He approved the Trust's care plan for adoption. Professor Triseliotis produced two reports for those proceedings. In the first, he said this, based on his observations of Nina with her parents:

"It is my overall view that [Nina] has attachments of some significance to her parents and that she greatly enjoys and benefits from contact. In spite of her interrupted parenting, and the fact that she is being parented for 24 hours a day by foster parents, she has retained and/or developed significant attachments to her parents. This could be attributed to some positive parenting when mother was not drunk and to the frequency of contact sessions. She also has a heightened awareness of who they are and in spite of her very young age, they could not be easily excised from her life without leaving psychological scars."

In the second, he concluded in the light of the risk of the mother's again relapsing into alcohol abuse and the fate of the older children that he could not recommend returning Nina to her mother. But:

"At the same time I should stress that [Nina's] attachments to her parents are significantly stronger than estimated by the Trust's staff and I do not recommend excising them from her life. In the event of her being adopted she should have 3-4 annual face-to-face contact meetings with her parents."

The judge specifically noted this evidence, when approving the Trust's plan to reduce contact gradually, from twice a week with parents, once a week with the whole family and once a month with her siblings only, eventually to once a month.

14. Nevertheless, the Trust did not make any attempt at that stage to find prospective adopters, still less to find adopters who were willing to accommodate Nina's need for contact with her parents. This is despite the clear guidance from the DHSS that, if the care plan is for adoption, prospective adopters should have been identified and the match between child and prospective adopters approved by the adoption panel, before the final hearing of the care proceedings (see DHSS, Permanency Planning for Children: Adoption - Achieving the Right Balance, May 1999, para 6.9). No doubt their reason was the two fold assumption: first, that where the parents were opposed to adoption, it was necessary to apply to free the child for adoption and second, that the child should not be placed before she was freed. The DHSS Guidance acknowledges that it may be necessary to free the child for adoption, but points out that the care and adoption proceedings should be co-ordinated, so that the parents do not have to face a contested care application followed months later by a contested freeing application (para 6.11). It also stresses the need to avoid delay in the placement of children (para 5.1).

15. Yet that is what happened in this case. The freeing application was made in September 2004, heard by Gillen J over seven days from 24 January to 14 April 2005 and decided on 31 May 2005, 10 months after the care order was made. Yet it appears that little attempt was made to find prospective adopters during that time, apparently because it was the Trust's policy not to do so until there was a freeing order. Furthermore, there was no attempt to explore the issue of contact with prospective adopters, because despite the evidence of Professor Triseliotis the Trust remained opposed to an open adoption.

16. Professor Triseliotis gave evidence on two separate days in the freeing hearing. His evidence on the first day was that he disagreed with the Trust's plans for no contact after the adoption. There could be no question of post adoption contact if the parents did not support the adoption. But their opposition to adoption did not mean that they would undermine the placement if an order was made. They had to be judged after the court had made its decision. They had not undermined the foster placement during the frequent contact they had had before the care order. It was in the child's interests to have direct contact and adoptive parents should be found who could accommodate that. If no such family could be found the Trust might instead have to look for a long term foster placement which could lead to adoption. He pointed out that the advice given by The British Association for Adoption and Fostering was that all prospective adopters should be prepared for the possibility of post adoption contact. If every effort was made to find such adopters, he was hopeful of success.

17. Before he returned for cross examination to be completed, a senior social worker had given evidence for the Trust. They had initially been opposed to direct contact because of the parents' hostility, but having heard Professor Triseliotis' evidence, they were prepared to look for prospective adopters who would meet all Nina's needs, including her need for continued contact with her parents. However, they could not guarantee to find such adopters or that contact would be workable. When the Trust's modified stance was put to Professor Triseliotis, he eventually accepted that if every effort was made over a period of six months to find suitable adopters who would agree to direct contact, but none could be found, he would 'go for adoption but with some regret that an adoptive parent would be so exclusive'. He had changed his mind on the understanding that the Trust would make such efforts and that the court would have to be satisfied that they had done so. It is fair to say, on reading the transcript, that the judge played a considerable part in the modification of the stance of both the Trust and the Professor. The guardian also modified his views on post adoption contact 'slightly'.

18. Mr Justice Gillen concluded that adoption was in Nina's best interests (para 18). He referred to the 'chilling' evidence given by Professor Triseliotis of the emotional damage suffered by the older children; he was convinced that there was no realistic possibility of the mother remaining abstinent during Nina's childhood; a further breakdown would be catastrophic for her; adoption was the only way to safeguard and promote her welfare throughout her childhood. At that stage he did not refer to the question of contact.